Kevin Demirci Properties Limited v Huw Griffiths Architects Limited

This is a case in which the Claimant company’s Particulars of Claim (“PoC”) pleaded an allegation of fact that was false and did not accord with the true facts as the Claimant has at all material times known or believed them to be. It follows that the statement of truth which appears at the foot of the PoC, which was signed by the Claimant’s legal representative on its behalf, was itself false and should never have been signed. The false allegation was highly material in that it was effectively the basis on which the PoC pleaded that the Claimant had suffered loss of over £13.5m, whereas its pre-action correspondence (which had not advanced the false allegation) had claimed around £6.5m.

The PoC was filed at a time when the Claimant was no longer being represented by solicitors and was instead being represented by a self-employed barrister in independent practice who had been granted by the Bar Standards Board (“BSB”) an authorisation to conduct litigation. Such an authorisation permits a barrister who is being instructed by a lay client on a ‘direct access’ basis to carry out acts, such as signing statements of case on behalf of the client, which barristers in independent practice are generally not permitted to carry out and which are usually done by their instructing solicitors. The barrister, whom I will refer to as “Barrister M”, had filed a Form N424 (‘Notice of change of legal representative’) in August 2022 in which he identified himself as the Claimant’s new legal representative. It was Barrister M who signed the statement of truth, doing so on behalf of the Claimant, and it was he, or an assistant acting on his direction, who filed the PoC at court using the electronic filing system.

It should not need to be said that the filing at court of a document verified by a statement of truth which asserts a fact that the person signing it, or on whose behalf it is signed, knows is false constitutes improper litigation conduct. Such conduct is liable to interfere with the court’s ability to do justice and is viewed by the court with the utmost seriousness. As this case illustrates, however, the court’s response to such conduct will depend on the specific circumstances and must be proportionate.

Amongst the applications which I heard, and on which I am now giving judgment, is an application by the Defendant for the court to respond to the inclusion of the false allegation in the PoC by: (a) striking out the claim; and/or (b) granting the Defendant permission to bring contempt proceedings against the Claimant’s sole shareholder and director, Mr Garip Demirci.

The Defendant also applies, further or alternatively, for the claim to be struck out on another basis, namely that it discloses no cause of action because there was no privity of contract between the Claimant and the Defendant. The Defendant is a firm of architectural design consultants. The basis for the Claimant’s claim is essentially that it commissioned the Defendant to produce designs, and pursue planning consent, for the building of new student accommodation on land that the Claimant owned, but the Defendant’s performance of those services was incompetent. The Defendant contends that its contract to provide those services was a contract with Mr Demirci personally and that it had no knowledge of the Claimant at the time when the relevant contract(s) were formed.

If the claim is not struck out, then the Claimant seeks permission to amend its PoC. There is also an issue as to whether the Claimant should be permitted to select as its architect expert a different architect from the one from whom the Claimant previously obtained a report that it referred to, and relied upon, in its PoC.

I indicated at the hearing, having heard the parties’ submissions, that I would not be striking out the claim. But I also indicated that I would be handing down a written judgment in due course, as I thought it appropriate to fully record the factual background to the signing and filing of the PoC, as I have found it to be. That is because, as I explain further below, I have concerns about aspects of Barrister M’s conduct and consider that these should be brought to the attention of the BSB. This written judgment will assist the BSB in understanding my concerns and deciding what, if any, action should be taken. I emphasise that Barrister M was not himself party to the hearing before me; he has not had an opportunity to provide me with an account of his actions; and so my factual findings in this judgment will not be binding as against him. The investigation of his conduct, and any decisions as to what, if any, regulatory action should follow, will be matters for the BSB to consider.

The Claimant is a company registered in England and Wales. The date of its incorporation was 30 October 2014. As noted above, Mr Demirci is its sole shareholder and director. The Defendant is a firm of architects.

The claim relates to a piece of land in Swansea which the Claimant purchased in May 2015 and on which it intended to build student accommodation (the “Development”). The Claimant’s case is that it instructed the Defendant for advice and architectural services, including the securing of planning permission for the Development. The Claimant alleges that the Defendant failed to perform the services competently and that, as a result, the progression of the Development was severely delayed and, ultimately, could not be pursued. To this day, the Development has not been built. The Claimant claims for losses that include loss of profits (or loss of a chance of making profits) and wasted professional and other costs.

The claim was issued in March 2021 but then stayed until 31 July 2022 whilst the parties complied with the pre-action protocol for professional negligence claims and attended a mediation that did not result in settlement. The Claimant’s PoC is dated 14 November 2022 and was filed and served on 15 or 16 November 2022. The Defendant served its Defence on 24 January 2023. There have subsequently been various delays in progressing the proceedings, for reasons which it is unnecessary to set out here.

As noted above, the PoC filed and served on 14 November 2022 was verified by a statement of truth signed by Barrister M on the Claimant’s behalf.

The PoC alleged, at paragraph 13, that the Claimant had entered into a joint venture agreement (“JVA”) with Sir Robert McApline (“SRM”) relating to the Development:

“On or about 27 March 2017, the Claimant accepted an offer to develop the Student Accommodation in the form of a joint venture with [SRM]. Under the joint venture agreement, SRM will bear the cost of constructing the Student Accommodation ....”

Based on that allegation, the PoC claimed that the losses suffered by the Claimant had included a loss of opportunity for profits under the JVA in the sum of not less than £13.5m, comprised of a £2m joining fee, 50% of the profit of the scheme for 3 years, and 50% of the profit from a subsequent sale of the Development.

These allegations came as a surprise to the Defendant, given that the Claimant had sent a detailed pre-action letter on 5 August 2021 which made no mention of a JVA and had alleged losses totalling around £6.5m (of which around £4.5m related to loss of profits).

In June 2024, the solicitors Hill Dickinson LLP assumed conduct of the litigation on behalf of the Claimant. In August 2024, they wrote to the Defendant’s solicitors stating that the claim relating to the alleged JVA was being abandoned, and that the Claimant would seek to amend the PoC so as to remove that claim and to make some further amendments. Subsequently, in a letter dated 10 September 2024, Hill Dickinson stated:

“Our client was aware that a claim had been prepared on the basis of a [JVA] but, as we have stated, there was no such agreement in place. At all material times, our client relied upon the advice of [Barrister M] but … the services provided by and the conduct of [Barrister M] have raised serious concerns which are under investigation.”

At the hearing before me, it was common ground that paragraph 13 of the PoC was false. The Claimant had never entered into a JVA with SRM relating to the Development. Nor had the Claimant in any sense “accepted” any offer from SRM relating to a JVA in respect of the Development. It is therefore unnecessary for me to set out in detail the contemporaneous documents I have been shown, relating to communications exchanged between the Claimant and SRM, via the estate agents Savills, in the period from February to April 2017. Suffice it to say that, although outline proposals for the terms of a deal were exchanged, the Claimant’s and SRM’s respective proposals were far apart from each other, and the Claimant never accepted any offer from SRM.

The Claimant, faced with demands from the Defendant for an explanation of why a false allegation of fact was pleaded in the PoC, has chosen to waive legal privilege by providing the Defendant with copies of communications between Mr Demirci and Barrister M. Mr Demirci has also made an affidavit setting out sworn evidence as to how and why the PoC included the false fact. The Claimant has also provided, and waived privilege over, advice it received from another barrister in April 2021, prior to instructing Barrister M. Based on all these materials, I have gained quite a detailed insight into the chain of events.

At the hearing before me, the Defendant raised concerns that the Claimant may have held back certain documents, thus providing the Defendant and the Court with only a partial picture. I explored those concerns with the Claimant’s Counsel, and I am satisfied with the assurances I was given that Mr Demirci has not held back any relevant documents evidencing the instructions he gave to, and his other communications with, Barrister M. I have not, however, seen any attendance notes or other records that may have been created by Barrister M or his assistants and not shared with Mr Demirci.

The Claimant first instructed Barrister M in July 2022. Barrister M was sent various papers for introducing him to the proceedings. Those papers included a draft witness statement of Mr Demirci which had been prepared in February 2021 by the firm of solicitors that was at that time acting for the Claimant. Nothing in that draft witness statement asserted, suggested or implied that the Claimant had entered into a JVA, or had accepted any JVA proposal from SRM.

In late July 2022, Mr Demirci had a first meeting with Barrister M at the latter’s chambers. I have not seen any attendance note of the meeting, and I understand that the Claimant does not hold a copy of any such note.

On 31 July 2022, Mr Demirci sent an email to Barrister M attaching a spreadsheet setting out the Claimant’s estimates of the losses it had suffered and for which it hoped to recover damages from the Defendant. Neither the email nor the spreadsheet included any assertion that the Claimant had entered into a JVA in 2016 or 2017. Rather, the spreadsheet made reference to the profits the Claimant would have made “If deals had gone ahead with JV” and assumed a set of terms of the JV. The box at the bottom of the spreadsheet was headed, “My Final CONCLUSION to my LOSS is as follows: old JV offer in 2016 to the new current JV offer”. On that basis, the Claimant estimated its total loss at more than £18.4m. The email recognised that the value of the claim which had been communicated to the Defendant in pre-action correspondence was only £6.5 and provided an explanation for why the Claimant was now seeking to claim a much larger amount:

“Please find attached my spreadsheet setting out my losses. These losses are calculated with reference to figures received from the named companies.

I believe that these figures are realistic, however, please make the necessary amendments if you feel that you should add or take away from the figures.

Don’t know if you need to give them an explanation, but my previous claim amount was £6.5m, that was based on previous barrister’s recommendation rental income and increase build cost, if we had settled at mediation I was going to try and build it out myself. I can’t invest in this court case and attempt to build it. I will JV the project now, and this attachment is comparing missed opportunity from 2017 JV deal to 2024 JV deal.

I look forward to receiving a copy of the particulars.”

During August and September 2022, Mr Demirci sent a number of emails to Barrister M chasing to be provided with a draft PoC to review. In an email dated 16 August 2022, Barrister M indicated that he had been working on a draft PoC and would provide it to Mr Demirci shortly after returning from holiday on 22 August.

By 22 September 2022, Mr Demirci had still not received any draft PoC. He emailed Barrister M on that date, chasing again. Later that day, Barrister M’s assistant sent a draft PoC to Mr Demirci. This draft (“Draft 1”) was quite a short document and highly incomplete: in my view, it was little more than a template, setting out various potential causes of action and leaving placeholders where particulars would need to be inserted. Notably, Draft 1 did not include any assertion regarding a JVA or any other arrangement with SRM.

On 30 September 2022, Barrister M provided Mr Demirci with a further draft of the PoC. This draft (“Draft 2”) was a little more developed than Draft 1 but was still very far from constituting a near-finished product. Like Draft 1, it did not include any assertion that a JVA had come into existence or that the Claimant had accepted any offer from SRM.

On 3 October 2022, Mr Demirci met with Barrister M to discuss Draft 2. I have not been shown any attendance note of the meeting, and I understand that the Claimant does not hold a copy of any such note.

On 7 and 14 October 2022, Mr Demirci sent emails chasing for an updated draft PoC, given that he was due to meet with Barrister M to discuss it on 17 October. But the updated draft (“Draft 3”) was not sent to Mr Demirci until lunchtime on 17 October, with the consequence that he had very little time to consider it prior to the meeting. Draft 3 is the first draft in which a reference to a JVA appears. Paragraph 10 of Draft 3 stated: “On 27 March 2017, the Claimat [sic] received an offer to develop the student accommodation at the Development site, the Claimant also entered into a joint venture with [SRM] with a potential yield of £1,000,000.00 per year.”

Mr Demirci’s affidavit sets out his recollection that, during the meeting on 17 October, he correctly explained to Barrister M the history of the negotiations with SRM, including the set of terms that had been proposed by SRM but which the Claimant had not accepted. Mr Demirci asserts that Barrister M then advised, based on that history, that “in his view there had been a verbal acceptance of the SRM offer and therefore a contract was formed”.

A further updated draft of the PoC (“Draft 4”) was provided to Mr Demirci on 27 October 2022. In this draft, paragraph 10 was more developed and now asserted the £13.5m loss of profits claim relating to the alleged JVA and provided a breakdown of how that figure had been calculated.

Mr Demirci’s affidavit states that a meeting that had been arranged between himself and Barrister M for 31 October 2022 was cancelled by Barrister M at short notice, after Mr Demirci had already travelled from Wales for that meeting. Mr Demirci further states that, a few days later, he went to Barrister M’s chambers and had argued with Barrister M. Having seen the emails sent by Mr Demirci, I can understand that he was finding the lack of responsiveness from Barrister M stressful.

On 7, 9, 10, 11 and 12 November 2022, Mr Demirci chased to be provided with a further updated draft PoC for him to review. On 12 November, Barrister M responded, promising that an updated draft PoC would be provided later that day.

On the morning of 13 November 2022, Barrister M sent Mr Demirci an updated draft PoC (“Draft 5”). This draft included a statement of truth that had already been signed by Barrister M on behalf of the Claimant and which was dated the following day, 14 November 2022. Within that draft, the paragraph setting out the allegation regarding a JVA with SRM, and the terms of that JVA, had become paragraph 13.

At around lunchtime on 13 November, Mr Demirci sent an email to Barrister M providing some comments on Draft 5. Within those comments, Mr Demirci asked the following question regarding paragraph 13: “Question? Do we not need to give explanation why did [SRM] withdraw the offer. For example, Do we not need to mention after receiving the drawing they withdraw their offer.” It appears that Barrister M did not respond to that email, or at least did not provide an email response that engaged with that question.

On the morning of 15 November, Mr Demirci and Barrister M spoke by telephone. Mr Demirci asserts in his affidavit that, during that call, Barrister M advised that there was no need for the PoC to mention that SRM had withdrawn the offer, and no need to make any further amendments to paragraph 13. Over the course of the rest of the same day, various emails were exchanged between Mr Demirci and Barrister M, but those exchanges did not relate to paragraph 13 or the alleged JVA.

At 15:41 hours on that day, Barrister M’s Practice Manager sent a final draft of the PoC (“Draft 6”) to Mr Demirci under cover of an email stating, “Please find the attached revised PoC with amendments being highlighted for your approval”. Paragraph 13 of Draft 6 was in the same terms as paragraph 13 of Draft 5. Mr Demirci provided a short comment on Draft 6 at 16:10 hours. At 16:34 hours, Barrister M’s Practice Manager informed Mr Demirci that the claim form and PoC had just been served. The court file records the PoC as having been submitted to the Court on that date but records the date of filing as being the following day, 16 November.

It is fair to say that the PoC, as finalised and filed, was not a high quality document and contained multiple inaccuracies. For example, it contained multiple references to Mr Demirci but repeatedly mis-spelled his name as “Dermici”; an error that was apparently not noticed by Mr Demirci himself when reviewing the draft versions of the PoC. Some pleaded facts as to occurrences in the past were confusingly expressed in the present tense. There were many typographical errors; for example, an allegation that the Defendant was informed that the Claimant would rely on the Defendant’s advice and experience for ensuring “that the Student Accommodation could be built in a cost-effectively”. The word “Design” was capitalised, as though it was a defined term, but was not defined. The PoC pleaded an allegation that the contract(s) between the parties included, pursuant to section 4 of the Supply of Goods and Services Act 1982, an implied term to provide “goods” of satisfactory quality and which were fit for purpose, despite that the alleged contract was for architectural services and appears not to have envisioned any supply of goods.

The Defendant’s Defence, served in January 2023, put in issue whether a JVA had ever been agreed.

A first case and costs management conference (the “CCMC”) took place on 10 November 2023, at which Barrister M appeared for the Claimant. The issue as to the existence of the JVA was amongst the matters discussed at the CCMC. The transcript of the hearing records the following exchange:

By June 2024, the relationship between Mr Demirci and Barrister M had greatly frayed, as evidenced by the tone of their email exchanges. In an email after 6 p.m. on 3 June 2024, Mr Demirci complained about a “lack of response or transparency as to what is happening with my case”, and set out a list of questions to which he demanded Barrister M respond by 10 a.m. the following morning. One of the questions was as follows:

“At paragraph 21 of the Defence, the Defendant denies knowledge of the Joint Venture and relies on the fact that no mention was made of the joint venture until the Particulars of Claim was served. In my draft Reply to Defence, I have explained that the Defendant was aware of the possibility of a joint venture partner. If the Defendant was not aware of the actual joint venture or the potential terms that were being discussed then does my claim fall away because it is too remote or not foreseeable? If it does, then why do you believe that I have a strong claim?”

Barrister M’s response to that question was this:

“I will need to time to put this in writing. There is no immediete [sic] urgency for this.”

On 8 June 2024, Barrister M sent an email to Mr Demirci which included this text:

“Please let me know what other documents are available regarding the joint venture. You said in your email of 4 June 2024 that you had given us these documents. Please let us know what or in what form these documents are so that we can try to allocate them from the bundles of hardcopy papers you sent to us, as requested in my second email of 4 June 2024 asap.”

Mr Demirci responded the following day, stating: “You have all of the documents either in the files that I gave to you or by email.”

Later the same month, the Claimant terminated its instructions to Barrister M, and instructed its current solicitors, Hill Dickinson.

I now set out my assessment of the evidence.

I broadly accept the account given by Mr Demirci in his affidavit of his communications with Barrister M, given that it accords with the contemporaneous documents. It is understandable that Mr Demirci found dealing with Barrister M very stressful. The lateness with which versions of the draft PoC were provided was not conducive to Mr Demirci being able to properly review those drafts and discuss them with Barrister M.

I do not, however, accept Mr Demirci’s assertion in his affidavit that he was advised by Barrister M that the negotiation emails or other exchanges with SRM had given rise to an oral contract, and that Mr Demirci accepted that advice. Given that I have not seen any attendance notes Barrister M may have made, I cannot be sure what advice Barrister M gave the Claimant when discussing the case in meetings or by telephone. But Mr Demirci knew the nature of the negotiation exchanges that had taken place with SRM; in particular, he knew that these had consisted of emails exchanged via Savills, and that the Claimant had not accepted any terms SRM had proposed. In my view, regardless of what advice was given by Barrister M, it is simply not credible for Mr Demirci to assert that he believed that an oral contract had arisen. Mr Demirci knew perfectly well that the Claimant had never entered into a JVA with SRM, and that the Claimant had never accepted any joint venture terms proposed by SRM.

I have not seen Mr Demirci give live evidence and be cross-examined. Based on my consideration of his affidavit and the contemporaneous documents, however, I do not think his assertion that he accepted Barrister M’s advice that a JVA had been concluded is a deliberate lie. It is apparent from the contemporaneous documents that the process by which Barrister M sought instructions from the Claimant was rushed and inadequate, and that communications between Barrister M and Mr Demirci were often characterised by multiple layers of confusion and inaccuracy. Their communications with one another were not assisted by the fact that English is not Mr Demirci’s first language. I think Mr Demirci may now be struggling to himself understand, or rationalise, how and why the PoC was finalised in a form which asserted a fact that was always contrary to the true factual position as he knew it to be. Mr Demirci may well now believe that he was advised by Barrister M that a JVA had arisen, and that he had accepted that advice, even if the reality is that the factual position regarding the (potential) joint venture with SRM was simply not properly focussed upon during the chaotic and rushed process by which the draft PoC was developed between 17 October 2022 (the date when Draft 3 was provided) and 15 November 2022 (the date when the finalised PoC was filed and served).

In my assessment of the available evidence, the principal causes of the inclusion of the false fact in the finalised PoC were three-fold, and were the fault principally of Barrister M and not of Mr Demirci:

This is not, of course, to absolve Mr Demirci of all responsibility. He had had sight of Draft 3 around a month before the PoC was finalised. He should have insisted on satisfying himself that all the facts set out in it were true, and not simply relied on, or deferred to, Barrister M’s drafting or advice. He was, however, a layperson struggling to deal with a legal professional to whom he was entitled to look for guidance and who was not proving easy to work with.

I am satisfied that, although Mr Demirci has at all times known that no JVA was ever agreed with SRM and that the Claimant never accepted any joint venture terms proposed by SRM in 2016/17, there was no intention on his part to assert false facts in the PoC. What has happened has been the result of chaos and incompetence (principally attributable, as I have said, to Barrister M) and not to any dishonesty or recklessness by Mr Demirci. As illustrated by Mr Demirci’s 13 November 2022 email asking Barrister M a relevant question (see paragraph 31 above), Mr Demirci, far from being reckless as to whether the pleading in the PoC regarding the potential JVA was correct, expressly asked Barrister M whether the drafting should be modified so as to make clear that no JVA was ever agreed with SRM.

The leading authority on the approach to be followed by a court when deciding whether serious litigation misconduct by a claimant, such as dishonest submission of false evidence, should lead to the claim being struck out is Summers v Fairclough Homes Ltd [2012] UKSC 26. That was a case in which a claimant had dishonestly exaggerated a personal injury claim. At the conclusion of a quantum trial, the trial judge had found that the claimant’s conduct in exaggerating his injuries and their impacts on him was serious and deliberate and amounted to fraud, but that the court had no power to strike out a claim after the trial had already taken place. The Supreme Court disagreed with the trial judge on that point, finding that, in principle, the court retained power to strike out a party’s dishonest pleadings as an abuse of process, even after a trial. Nevertheless, the Supreme Court upheld the trial judge’s refusal to strike out the claim, doing so because this would not have been a just and proportionate response in circumstances where it would have deprived him of compensation for a significant injury he had suffered.

Mr Oliver, who appeared before me on behalf of the Defendant, distinguishes Summers from the present case. The present case is one in which no trial has yet taken place, and the proceedings are still at an early stage. As Mr Oliver rightly observed, where the costs of a trial have already been incurred and the trial court is able fairly to determine issues on their merits, then it would only be in an exceptional case that the court would decline to do so and instead strike out the claim. Where proceedings are at an early stage, however, the benefits of striking out a case will include protecting the defendant from being exposed to the costs of subsequent stages of the proceedings. A claimant’s litigation misconduct (such as pleading allegations that it did not believe to be true) could operate to increase the costs and court time likely to be incurred at such subsequent stages, if the proceedings are allowed to continue. In Summers, Lord Clarke JSC, giving the judgment of the Court, stated, at [62]:

“… [N]othing in this judgment affects the correct approach in a case where an application is made to strike out a statement of case in whole or in part at an early stage. … [O]ne of the objects to be achieved by striking out a claim is to stop proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined.”

For exemplifying the proper approach to be taken by a court when deciding whether to strike out a claim at an early stage, Mr Oliver referred me to the Court of Appeal’s decision in Arrow Nominees Inc v Blacklege [2000] 2 BCLC 167 (which pre-dates Summers). That was a case in which the petitioner had forged, or fraudulently altered, documents that were central to his case. Per Ward LJ at [75], the Court thought it appropriate to “make the clear statement that deception of this scale and magnitude will result in a party's forfeiting his right to continue to be heard”.

My attention has also been drawn to Dadourian Group International Inc v Simms [2009] EWCA Civ 169 in which the Court of Appeal declined to strike out the appellant’s notices of parties who had repeatedly and deliberately failed to comply with their disclosure obligations. The Court reasoned that, as the disclosure breaches did not affect the conduct of the appeals, the striking out of the appeals would be a disproportionate response to the breaches.

In my view, the Supreme Court’s decision in Summers, and the Court of Appeal’s decisions in Arrow and Dadourian,are all consistent with each other in terms of the principles the court should apply when deciding whether to strike out a statement of case of a party by reason of that party’s litigation misconduct. Those principles include the following:

Applying those principles to the present case, the striking out of the Claimant’s claim would not be an appropriate response to the Claimant’s pleading of a false fact, given the circumstances as I have found them to be. There was no intention on the part of the Claimant, its director (Mr Demirci), or its legal representative (Barrister M), to file and serve a PoC asserting any fact known to be false, or being reckless as to whether those facts were true or false. The inclusion of the false fact in the PoC can be corrected by amending the PoC, and the Defendant can be compensated in costs for the consequences of the false fact having been pleaded. There is no good reason for anticipating that the pleading of the false fact, after such correction, would have any continuing effects in terms of undermining the fairness of the proceedings or impeding the court from doing substantive justice between the parties in accordance with the overriding objective.

CPR 32.14 provides that proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth. Proceedings under this CPR 32.14 may be brought only by the Attorney General or with the permission of the court. The procedure for contempt proceedings is to be found in CPR 81.

The approach to be taken by a court when deciding whether to grant permission for contempt proceedings to be brought was set out by the Court of Appeal in KJM Superbikes Ltd v Hinton (Practice Note) [2008] EWCA Civ 1280 and TBD (Owen Holland) Ltd v Simons [2020] EWCA Civ 1182, at [232]–[234]. In summary, permission should not be granted unless: (1) a strong prima facie case has been shown against the alleged contemnor; and (2) the court is satisfied that the public interest requires the proceedings to be brought and that the bringing of the proposed proceedings would be proportionate and in accordance with the overriding objective. The court should bear in mind that each necessary element of the contempt would need to be proved to the criminal, not the civil, standard.

In this case, I have no hesitation in refusing the Defendant permission to bring contempt proceedings against Mr Demirci. My reasons are as follows:

In view of the chain of events leading to the PoC containing a false fact being verified by a statement of truth, I have concerns about Barrister M’s professional conduct which go beyond the quality of service he provided to the Claimant.

The requirement in CPR 22.1 for certain documents to be verified by a statement of truth serves an important function. It ensures that, before a document is finalised and submitted, a formal step is required by which a person is compelled to consider whether they are able and willing to verify the contents of the document, doing so knowing that signing a false statement of truth may give rise to severe consequences pursuant to CPR 32.14. The deliberate or reckless making of a false statement in a document verified by a statement of truth is so inherently serious that committal to prison is usually appropriate, regardless of the financial value of the proceedings or whether the falsity affected the outcome (Liverpool Victoria Insurance Co Ltd v Khan and ors [2019] EWCA Civ 392, [59]-[60]).

Thus, the signing by a legal representative, on behalf of a client, of a statement of truth on a court document is not a mere administrative formality. Rather, it is a serious act that should be undertaken seriously. As Hickinbottom J explained in Zurich Insurance Plc v Hooper (Claim No B90CF060, judgment dated 24 June 2016):

“… By paragraphs 3.7 and 3.8 of CPR 22 PD, a legal representative may sign a statement of truth on behalf of a party, and that will be taken by the court as the representative’s statement that (i) his client has authorised him to do so; (ii) before signing, he has explained to his client that in signing the statement of truth he would be confirming the client's belief in the facts as stated; and (iii) before signing, he had explained to the client the possible consequences for him if it subsequently appears that the client did not have an honest belief in the statements made.”

Accordingly, it is essential that legal representatives do each and all of the following things before signing a statement of truth on behalf of a client: (a) explain to the client the importance of ensuring that the facts set out in the document are true, the significance of the statement of truth, and the consequences of signing a false statement of truth; (b) ask the client to confirm that it believes all the facts stated in the document to be true; and (c) obtain a clear and unequivocal instruction from the client to sign the statement of truth on the client’s behalf. Based on the contemporaneous documents I have seen, it is not clear to me that Barrister M did any of those things. Further, it appears that he signed the statement of truth on Draft 5, i.e. a version of the document that was not the finalised version, and without having obtained client instructions to sign that version as the final version. In my view, it may be arguable that his conduct fell below the standard required by the Bar Code of Conduct.

I have thought carefully about what action I should take in relation to these circumstances. I have decided that the appropriate course is for me to hand down this reserved judgment, setting out the relevant facts as they appear to me to be, and to ensure that a copy is sent to the BSB’s professional conduct department for them to consider. I am conscious that Barrister M is not a party to these proceedings and did not appear before me, and he has therefore had no opportunity to answer my concerns. Further, I have not seen any attendance notes he may have made of his meetings and phone calls with Mr Demirci. The BSB would be able to carry out an investigation for establishing all the facts and for deciding what, if any, disciplinary or other regulatory action should be taken. As the BSB is the body that has granted Barrister M an authorisation to conduct litigation, the BSB may have available to it a range of intervention and sanctions options, such as suspending or withdrawing that authorisation, if appropriate. The BSB is therefore the appropriate body to address my concerns, and there is no need for the court to itself make further inquiry into them.

The PoC alleges that there was a contract between the Claimant and the Defendant which was evidenced by emails on various dates in early 2015 (namely 5 January, and 4, 6 and 25 March). This is denied by the Defendant, which contends that its contract was with Mr Demirci personally, and it had no knowledge of the Claimant. In support of that denial, the Defendant notes that Mr Demirci’s emails to the Defendant were sent from his personal ‘hotmail’ email address, and that the Defendant’s invoices were addressed to Mr Demirci and not to a company. The PoC do not include any pleading as to why the Defendant would have owed a duty of care to the Claimant in tort even if the Claimant was not a party to relevant contracts with the Defendant.

The Defendant now seeks the striking out of the claim on the basis that the Claimant has no cause of action, as there was no contract between the Claimant and the Defendant. In my view, the Defendant’s application to strike out the claim on this basis is hopeless, and I have no hesitation in refusing it. My reasons are as follows:

For all those reasons, the issue as to whether the Defendant owed the Claimant any contractual or other relevant duties cannot properly or fairly be determined summarily now.

By Application Notice dated 4 March 2025, the Claimant applies for permission to amend its PoC by way of the amendments shown in the draft Amended PoC (“APoC”) attached to that application. The proposed amendments are very extensive. Some of the amendments are for addressing errors in the PoC (as drafted by Barrister M). But most of them are, in my view, providing important and much-needed particularisation of the Claimant’s case in terms of:

The Defendant objects to all the proposed amendments, save for the deletion of paragraph 13 of the PoC (the paragraph that pleads the false fact regarding a JVA with SRM). For opposing the amendments, the Defendant relies on a solicitor’s witness statement (“Walker 3”).

It is common ground that the limitation period has expired. The approach to be taken by a court for deciding whether to permit a claimant to amend its PoC in these circumstances is the four-stage approach set out in Geo-minerals GT Ltd v Downing [2023] EWCA Civ 648 at [25], assisted by the discussion in Alame v Shell Plc [2023] EWHC 2961 (KB) at [50]-[53]. As the limitation period has expired, the outcome of Stage 1 is obvious. The focus is therefore on the remaining three stages:

“(2)

Do the proposed amendments seek to add or substitute a new cause of action? If so proceed to the next question; if not rule 17.4 does not apply and the amendment may be allowed under rule 17.1(2).

(3)

Does the new cause of action arise out of the same or substantially the same facts as are already in issue in the existing claim? If so then proceed to the last question; if not then the court has no power to grant permission for the proposed amendment, save by way of the ‘Mastercard’ approach ….

(4)

Should the court exercise its discretion to allow the amendment?”

At Stage 4, even where the court has power to permit the amendment, it will not do so unless it thinks appropriate in the exercise of its discretion, guided by the overriding objective in CPR 1.1 and weighing all relevant factors (as to which see Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB) at [10]).

It would not be proportionate for me to set out in this written judgment each of the many proposed amendments and then analyse them individually. I have, however, carefully considered each proposed amendment, together with the Defendant’s various objections set out in Walker 3 and elaborated upon by Mr Oliver at the hearing.

I am satisfied that each of the proposed amendments either: (a) does not seek to add or substitute a new cause of action; or (b) the new cause of action arises out of the same or substantially the same facts as are already in issue in the existing claim. The existing PoC sets out a claim that the parties contracted with each other for the Defendant to supply architectural services in relation to the Development, but that the Defendant failed to perform those services to the standard of competent architects holding themselves out as having the relevant expertise. In particular, it is alleged, inter alia, that the designs produced by the Defendant were not appropriate in terms of providing for an economically viable student accommodation development for which planning consent could be obtained in the relevant location. In my view, the Claimant’s proposed amendments adding allegations that the Defendant should have provided advice about certain matters earlier, or provided additional guidance, or produced designs that took account of specific planning policies, etc., are in the nature of particularisation of the Claimant’s existing broad, poorly particularised allegations. Those amendments do not, in my view, raise any new cause of action. But even if I am wrong about that, the new causes of action arise out of substantially the same facts as are already in issue in the existing claim. The issues raised by the amendments are within the scope of the matter that the Defendant will (or, at any rate, should), since being served with the PoC, have known was the subject of the claim against it, and about which it therefore had the opportunity to make internal inquiries and preserve evidence.

Walker 3 sets out the Defendant’s position that the following paragraphs of the draft APoC introduce new claims: paragraphs 19A, 19B, 23A, 23B and 27B. Paragraphs 19A and 19B relate to the local planning authority’s car parking policy and allege that the Defendant’s designs were inappropriate in terms of the provisions they made for car parking. Paragraphs 23A and 23B identify specific ways in which the Defendant’s designs were not economically appropriate for a student accommodation development, namely that they were unduly elaborate, complex to build, and/or inefficient in terms of use of space. Paragraph 27B identifies a further specific way in which the Defendant’s designs were inappropriate, namely that certain designs included balconies, which was not appropriate for student accommodation given health and safety risks. In my view, all those paragraphs provide particulars of specific ways in which the Defendant’s designs are alleged to have fallen below the standard of competent architects. If and to the extent that the amendments introduce any new cause of action, such cause of action arises out of substantially the same facts as are already in issue in the existing claim.

Walker 3 also asserts that the proposed amendments would introduce a new cause of action by claiming damages for ‘loss of a chance’ to enter into a joint venture arrangement and/or to develop the site. On my reading of the existing PoC, however, it includes a claim for loss of the opportunity of earning profits under a joint venture arrangement (albeit that the PoC erroneously pleads, under the heading “CLAIMANT’S JOINT VENTURE OPPORTUNITY”, that the Claimant had accepted a set of joint venture terms proposed by SRM, which is not something that happened). The bases for the Claimant’s claim for damages in the existing claim already include, as counterfactuals, that, absent the Defendant’s breaches, the Claimant would have been able to proceed with the development, whether under a joint venture arrangement or taking a self-build approach, and obtained profits from so doing; and that the Claimant has therefore suffered a loss of a chance of earning such profits. The proposed amendments provide necessary clarification of the Claimant’s case on those matters and also introduce new facts relating to various specific potential joint venture opportunities which the Claimant says illustrate that such opportunities were available. In my view, if and insofar as the proposed amendments addressing those matters raise any new cause of action, such cause of action arises out of substantially the same facts as are already in issue in the existing claim.

I now turn to considering whether I should exercise my discretion to permit the amendments. I note that this is not an ‘all or nothing’ decision, as I could potentially permit some amendments and not others. I have addressed further below the main points made by the Defendant as to why the amendments should not be allowed. Many of those points have some force, but I have ultimately decided to allow all the amendments. Taking a high level view, the interests of justice favour allowing the Claimant to make extensive amendments to its PoC, given that: (a) the consequences for the Claimant’s ability to pursue its claim effectively and to recover compensation that may be properly due to it would be serious, and probably terminal, if it could not remedy the defects and under-particularisation in the existing PoC; (b) it will assist the efficient and fair progression of the proceedings if the Claimant can advance its case based on a statement of case with which its current legal representatives are content, and if that statement of case provides appropriate particularisation of the allegations against the Defendant; and (c) the proceedings have not yet progressed beyond a relatively early stage. Whilst it is in principle fair that the Claimant take the consequences of any failings in the work done, and conduct of the litigation, by its previous legal representatives, and that the Defendant should not be prejudiced by such failings, the court’s powers in relation to costs are sufficiently broad to enable it to substantially mitigate prejudice to the Defendant. That is not to say that the Defendant could be fully protected: delay in these proceedings is intrinsically prejudicial to the Defendant and may also prolong or increase the stress of these proceedings for individuals, such as directors or employees. In all the circumstances, however, the prejudice to the Defendant from allowing the amendments is, in my view, outweighed by the impact that refusing the amendments would have on the Claimant’s ability to pursue substantive justice based on the true merits of its case.

As to specific points raised by the Defendant as to why the amendments should not be permitted:

Amongst the Claimant’s proposed amendments to its PoC, for which I am giving permission for the reasons set out above, is an amendment to remove text referring to, and relying upon, a report of an architect expert, Ms Djamali. The Claimant has been candid about the fact that its proposed amendments were informed by advice sought from a different architect, and it wishes to adduce expert evidence from that person.

The Defendant has objected to this, contending that the Claimant requires the Court’s permission to change its architect expert and that such permission should be refused. Solicitors’ witness statements filed by each party for the purposes of the Claimant’s application to amend its PoC include text by which the parties set out rival factual narratives relevant to the fairness of requiring the Claimant to continue to rely on Ms Djamali’s evidence. On the Claimant’s account, it had difficulty in contacting Ms Djamali, but even now that she has been located, it would not be fair to require the Claimant to rely on her as its architect expert witness, as she lacks experience in student accommodation developments. On the Defendant’s account, Ms Djamali’s contact details are readily available on the internet, and she has experience of a wide range of residential and commercial development projects in the UK.

In my judgment, it is not necessary for me to evaluate those competing narratives. The parties have shown me an unsealed minute of orders made at the CCMC in November 2023 which includes permission for each party to rely upon expert evidence of an architect (as well as from experts in three other specified disciplines) but does not specify the names of those experts. That being so, the Claimant does not need the Court’s permission to select someone other than Ms Djamali as its architect expert who will provide evidence by way of an expert report, pursuant to the CCMC Order, and potentially give oral evidence at trial: Vasilouv Hajigeorgiou [2005] EWCA Civ 236, [14]-[18].

I note for completeness that, had the Claimant needed the Court’s permission, I would have granted it. Ms Djamali appears not to have had any involvement with this case since sometime prior to drafting of the original PoC in November 2022. In all the circumstances, it would not be fair to prevent the Claimant from now selecting as its architect expert witness someone whom it considers has experience appropriate to a claim about purpose-built student accommodation. There is no prejudice to the Defendant from permitting the Claimant to make that selection (just as the Defendant is free to select an Architect of its choosing as its expert). In Vasilou, the Court of Appeal noted that ‘expert shopping’ is to be discouraged and that, accordingly, where a party seeks permission to change its expert, such permission may be granted on condition that the first expert’s report is disclosed. In the present case, however, it appears that the Defendant was sent a copy of Ms Djamali’s report prior to the date of the original PoC (and, since that report was referred to in the original PoC, the Defendant would anyway be entitled to inspection of that report). This is not a case in which there is reason for suspecting that a party is wanting to change expert in order to suppress unfavourable opinions expressed by the first expert.

For the reasons set out in this judgment: the Defendant’s application to strike out the claim is dismissed; the Defendant’s application for permission to bring contempt proceedings against Mr Demirci is also dismissed; the Claimant is granted permission to amend its PoC in the form of the APoC; and it is declared that the Claimant may select an architect expert of its choosing, who need not be Ms Djamali.

I will invite the parties’ proposals for directions for progressing the proceedings.